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Race, Fedralism, and Voting Rights Guy-Uriel E University of Chicago Legal Forum Volume 2015 Does Election Law Serve the Electorate? Article 5 2016 Race, Fedralism, and Voting Rights Guy-Uriel E. Charles Luis Fuentes-Rohwer Follow this and additional works at: http://chicagounbound.uchicago.edu/uclf Recommended Citation Charles, Guy-Uriel E. and Fuentes-Rohwer, Luis (2016) "Race, Fedralism, and Voting Rights," University of Chicago Legal Forum: Vol. 2015, Article 5. Available at: http://chicagounbound.uchicago.edu/uclf/vol2015/iss1/5 This Article is brought to you for free and open access by Chicago Unbound. It has been accepted for inclusion in University of Chicago Legal Forum by an authorized administrator of Chicago Unbound. For more information, please contact [email protected]. +(,121/,1( Citation: 2015 U. Chi. Legal F. 113 2015 Provided by: The University of Chicago D'Angelo Law Library Content downloaded/printed from HeinOnline (http://heinonline.org) Thu Feb 4 12:37:29 2016 -- Your use of this HeinOnline PDF indicates your acceptance of HeinOnline's Terms and Conditions of the license agreement available at http://heinonline.org/HOL/License -- The search text of this PDF is generated from uncorrected OCR text. -- To obtain permission to use this article beyond the scope of your HeinOnline license, please use: https://www.copyright.com/ccc/basicSearch.do? &operation=go&searchType=0 &lastSearch=simple&all=on&titleOrStdNo=0892-5593 Race, Federalism, and Voting Rights Guy- Uriel E. Charles & Luis Fuentes-Rohwert INTRODUCTION In Shelby County v. Holder,' the Supreme Court struck down Section 4 of the Voting Rights Act ("VRA") on the grounds that the Act violated "basic principles" of federalism and the equal sovereignty of the states. 2 Though the debate over "our federalism" is a longstanding one, federalism considerations in the context of voting rights are of more recent vintage. Indeed, notwithstanding the fact that Congress enacted the VRA nearly fifty years ago, it was not until thirty years later, in Miller v. Johnson,3 that a majority of Justices first alluded to the "federalism costs" of the VRA. 4 By 1997, in Reno v. Bossier ParishSchool Board,5 these costs had become "serious." And in Charles S. Rhyne Professor of Law, Senior Associate Dean for Faculty & Research at Duke Law School; Professor of Law and Harry T. Ice Faculty Fellow at Indiana University Maurer School of Law. We would like to thank Michael Kent Curtis and Heather Gerken for their helpful comments and generous feedback, as well as participants at The University of Chicago Legal Forum 2014 symposium, "Does Election Law Serve the Electorate?" We must also thank the law faculties at the William S. Boyd School of Law, University of Nevada, Las Vegas and Wake Forest Law School, where we presented earlier drafts of this project. 1 133 S. Ct. 2612 (2013). 2 Id. at 2624, 2631. Section 4(b) of the VRA established a mechanism or formula for identifying the parts of the country that Congress believed engaged in the most amount of racial discrimination in voting. Pursuant to Section 4, if a jurisdiction administered a test or device for voting in 1964 and less than 50 percent of that jurisdiction's citizens were registered to vote or voted, that jurisdiction was "covered" by Section 4(b). 43 U.S.C. § 1973(b) (2002). If a jurisdiction is "covered" by Section 4(b), Section 5 of the VRA requires that jurisdiction to submit its laws related to voting-"voting qualification or prerequisite to voting, or standard, practice, or procedure"-to the Attorney General of the United States or the United States District Court for the District of Columbia before those laws can go into effect. 43 U.S.C. § 1973(c) (2000). 515 U.S. 900 (1995). Id. at 926-27 ("But our belief in Katzenbach that the federalism costs exacted by § 5 preclearance could be justified by those extraordinary circumstances does not mean they can be justified in the circumstances of this litigation."). s 520 U.S. 471 (1997). 113 114 THE UNIVERSITY OF CHICAGO LEGAL FORUM [ 2015 1999, in Lopez v. Monterey County,7 they had become "substantial." After the Court decided Northwest Austin v. Holder,9 in 2009, it was clear that the Court's worry about federalism costs would weigh significantly in the Court's assessment of the constitutionality of the Act. Northwest Austin echoed the Court's previous assertions that the Act imposed substantial federalism costs and implicitly warned that at some point those costs would become insurmountable. 10 Scarcely four years later, in Shelby County, the Court finally concluded that the Act's federalism costs outweighed its benefits. The Court held that the Act's coverage provision, Section 4, was unconstitutional, which consequently froze the parasitic preclearance provision, Section 5.11 As a result, Northwest Austin and Shelby County have thrust federalism into the heart of voting rights disputes. 12 The interjection of federalism concerns into the voting rights context raises a number of issues, three of which we examine in this Essay. First, while the Court has clearly expressed its concerns that the VRA raises constitutional questions because of its federalism costs, the Court has said very little about the content of its concerns. What exactly are these federalism costs and why have they undermined the constitutionality of the VRA? As we show in Part I, the justices who are concerned about the federalism costs of the VRA have been very vague about the object of their concerns and they have failed to provide guidance on how to balance these costs against the purported benefits of the VRA. Building on our previous work, 13 we argue that the term "federalism costs" is but a truism 6 Id. at 480 (1997) ("To require a jurisdiction to litigate whether its proposed redistricting plan also has a dilutive 'result' before it can implement that plan--even if the Attorney General bears the burden of proving that 'result'-is to increase further the serious federalism costs already implicated by § 5."). 525 U.S. 266 (1999). 8 Id. at 282 ("We have recognized that the Act, which authorizes federal intrusion into sensitive areas of state and local policymaking, imposes substantial 'federalism costs."'). 9 557 U.S. 193 (2009). 10 See id. at 202. 11 133 S. Ct. at 2631. 12 See generally Franita Tolson, Reinventing Sovereignty?: Federalism as a Constraint on the Voting Rights Act, 65 VAND. L. REV. 1195 (2012) (advocating for the abandonment of federalism as the defining norm in the voting rights context). 13 Guy-Uriel E. Charles & Luis Fuentes-Rohwer, State's Rights, Last Rites, and 113] RACE, FEDERALISM, AND VOTING RIGHTS 115 signaling that the Voting Rights Act raises serious constitutional questions. In other words, the term is a reflection of the Court's intuitive discomfort with the exercise of federal power in a particular context or with the substantive aim of federal power in a particular context. When the Court raises the federalism costs argument, it is not clear whether it means to say anything other than simply "there is something about this that makes us deeply uncomfortable." Second, should the Reconstruction Amendments play any role in determining the allocation of power between the federal government and the states in the context of race and voting? Or put a different way, Part II asks whether the Court in Shelby County should have considered whether Reconstruction tipped the scales on the question of our federalism. At the risk of stating the obvious, we did have a civil war, soon followed by what is known as Congressional Reconstruction. This is the time in our history that brought us myriad constitutional amendments and congressional legislation designed to alleviate the plight of the newly freed Black population.1 4 How should we understand this important time in our constitutional history? In specific reference to the right to vote, how should we understand the Fifteenth Amendment, and particularly its Section 2, which confers on Congress the power to enforce the Amendment "by appropriate legislation"? Or put more generally, did Reconstruction change anything? In Shelby County, Chief Justice Roberts supported his federalism argument by citing to the Tenth Amendment.15 But relying on the Tenth Amendment is too facile; the argument assumes uncritically that the Reconstruction Amendments did not alter the federalism calculus. 16 Maybe at the end of the day, that argument is right and Reconstruction did not alter the original allocation of power Voting Rights, 47 CONN. L. REV. 481, 514-24 (2014). 14 See, e.g., U.S. CONST. amend. XIII-XV ("Reconstruction Amendments"); Civil Rights Act of 1866, ch. 31, 14 Stat 27; Reconstruction Act of 1867, ch. 152, 14 Stat. 428; Anti-Peonage Act of 1867, ch. 188, 14. Stat. 546; Enforcement Act of 1870, ch. 116, 16 Stat. 140; Enforcement (Ku Klux Klan) Act of 1871, ch. 22, 17 Stat. 13 (precursor to § 1983); and, inter alia, Civil Rights Act of 1875, ch. 114, 18 Stat. 335. 15 133 S. Ct. at 2623. 16 See New York v. United States, 505 U.S. 144, 207 n. 3 (White, J., dissenting) ("I do not -read the majority's many invocations of history to be anything other than elaborate window dressing .... One would not know from reading the majority's account, for instance, that the nature of federal-state relations changed fundamentally after the Civil War."). 116 THE UNIVERSITY OF CHICAGO LEGAL FORUM [2015 between the national government and the states. But the question is worth asking, particularly in this context. The Court never engages in the inquiry and its refusal to ask is the sum of our complaint. Third, we introduce in Part III a different variable for consideration in the federalism debate.
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